STATE OF TASMANIA v JOHN SPIRO FIOTAKIS 3 OCTOBER 2025
COMMENTS ON PASSING SENTENCE SHANAHAN CJ
Mr Fiotakis you have been convicted by a jury of your peers on one count of attempting to dishonestly acquire a financial advantage contrary to sections 252A(1) and 299 of the Criminal Code 1924, which I will refer to as the “Code”.
You and your son Spiro were the sole directors of the company SJF (Tas) Pty Ltd when that company purchased a black 2009 Lamborghini Gallardo for $239,990. On 29 May 2019 the Crown alleged that your son, Spiro, was driving that Lamborghini on Pittwater Road near Seven Mile Beach when it was involved in an accident and was effectively destroyed by fire. Spiro, was 24 years of age at that date having been born on 8 June 1994.
At trial, the State’s case was that as a consequence of a 24 year old being the driver at the time of the accident, the Allianz policy did not cover the damage to the Lamborghini which was a “write off”. Mr Arendt put the case in the following way:
“In a nutshell, the Crown’s case … [was that you] … lied to Allianz Australia Insurance Limited in an attempt to secure a financial advantage of a hundred and eighty-two thousand, nine-hundred and fifty dollars, for either himself and/or a company called SJF (Tas) Pty Ltd. And neither, the Crown says, were those parties entitled to receive that financial advantage.”
There are a number of factors that set this sentencing disposition apart. First, the nature of the crime of which you have been convicted, second, despite your conviction, you continued to maintain your innocence until a special further sentencing hearing yesterday, and thirdly, the matter has taken an inordinate time to come to trial. The indictment was laid in 2020. In relation to the last matter, even this sentencing process has required two hearings and despite setting deadlines for further material, my Chambers were receiving urgent email this afternoon. There has to be an end to this process and I will not prolong it unless fairness demands that I do.
In that regard, I was referred to Roberts v The State [2011] TASCCA 2. That case is authority that a sentencing judge must resolve any factual disputes between the parties that impacts upon sentence. Whilst there is a dispute as to your motivation in committing this crime, which is a matter I must resolve, the only issue of fact is the extent to which I can be satisfied that your son, Spiro, suffered from mental illness.
One of the urgent email received in my Chambers this afternoon requested that I allow you to give viva voce evidence this afternoon immediately before sentencing you, that despite the fact that the date of this sentencing has been known since the sentencing hearing on 8 September 2025, and I heard counsel yesterday, by exception, on 2 October 2025. The list of matters about which evidence was sought to be adduced included:
- Why documentation as to mental health admissions and treatment of his son, Spiro, is not available to you;
- The history of Spiro’s mental health condition;
- The concern you had for Spiro on 29 May 2019 and its basis in contemporaneous events;
- The reason you lied to police about who was the driver;
- The reason why you made the insurance claim, and
- The reason why you failed to withdraw the false claim.
I do not require evidence on the first point and accept that you may not be able to obtain such material. In respect of Spiro’s mental health, as I have indicated, I accept that Spiro made a Statement of Evidence in support of an alibi on 8 March 2023 in the form of a statutory declaration, and that statement was provided by the State to the Court yesterday afternoon. That statement indicated that Spiro had a long history of mental illness, had made a suicide attempt at the end of 2012 or the start of 2013, and that he had had an in-patient stay at that time. It also stated that on the relevant day in question, 29 May 2019, your son, Spiro, had been feeling suicidal and met you at Midway Point, after which you drove the Lamborghini home. If I accept your admissions made yesterday on 2 October 2025 then, of course, the last portion of that statement that you drove the Lamborghini home, is a falsehood.
However, what I am prepared to accept is that your son Spiro has a history of mental illness and that includes an attempt at suicide in 2012/2013 which is referred to in his statutory declaration. I am also prepared to accept that you were motivated in committing this offence, in part, and I emphasise “in part” by your desire to protect your son. I was told by your counsel that was the reason you lied to police about who was the driver; why you made the insurance claim, and why you failed to withdraw that false claim. There is no need to hear additional evidence about those matters, and you have confirmed that you wish me to proceed to sentence, and I do so.
I will start with the nature of the crime. I accept the State submission that this is an objectively serious crime. Section 252A was inserted into the Code in 1975 to criminalise conduct that was neither stealing nor obtaining by false pretences. Attempting to acquire a financial advantage is a broader offence and is often deployed in respect of insurance fraud.
Sentences for attempts to commit a crime are often less than penalties applied to an offender who successfully commits a crime. However, convictions for attempts in respect of cases involving dishonesty, such as this case, are more frequent because of the diligence of those targeted by such criminals, such as insurance companies. In other words there are more people charged with attempt because they fail to successfully acquire the advantage they seek because insurers put in place measures to prevent fraud. It is important to emphasise that merely because the victim is able to protect its own interests does not detract from the criminality involved, and further that these crimes can be hard and expensive to detect and difficult to prosecute.
There are many examples of drivers who either crash their cars and report them stolen, or who otherwise seek to claim the benefit of insurance by burning their vehicles. Insurance companies can be particularly vulnerable to fraud of this nature.
When attempts to defraud insurers are successful it generates losses which I have no doubt are then passed on to honest consumers of insurance products. The victims in crimes such as this are not merely the insurance companies themselves.
This type of offending can be difficult to detect. The State submitted at your sentencing hearing that but for a chance event, being that a colleague of Senior Constable McVilly, who was the person who went out to investigate what had happened, not as a crime but to see what the cause of the fire was, contacted him after reading Senior Constable McVilly’s crash log and told him that he knew you through soccer and he had never known you to drive a Lamborghini. The colleague suggested Senior Constable McVilly should look at the matter a bit closer, which is, in fact, what he did and how this particular narrative unfolded.
In this case you were charged with seeking to obtain $182,950 for yourself and/or your related company, being SJF (Tas) Pty Ltd. If it was to benefit your related company, that would also indirectly benefit your son Spiro, who had an interest in that company. That is a large amount and reflects the value of the Lamborghini Gallardo, registration number TSF001. Whilst there are examples of this type of offending in the past, the value of the vehicle sets it apart. The vehicle is an example of a marque produced by Lamborghini between 2003 and 2013. I understand its name “Gallardo” is derived from a famous breed of fighting bulls.
Yesterday, at the special hearing, after more than six years, an insurance investigation, a police investigation, and a trial, you finally admitted your guilt for the incident in 2019, and that you were not the driver of the Lamborghini at the time of the crash but that the car was driven by your son, Spiro. The jury, by its verdict, clearly found that you were not the driver. For those who challenge the jury system, this demonstrates how the jury, in this instance, was able to see past your obfuscation and find the truth.
The difficulty of those investigations, and in prosecuting a crime such as this, was reflected in the evidence led at trial. I was invited by counsel for the State to infer that you intended to make a false claim on the policy of insurance from the very moment you rang triple zero at 9.21pm on the evening of 29 May 2019, and spoke to Tasmanian Fire Services to report the Lamborghini was on fire. It was clearly at, or after, that point and, based on the submissions made yesterday, it appears to have been when you realised that Spiro had been involved in an accident in the Lamborghini. It is unclear whether you were motivated to make an insurance claim when you first told Senior Constable McVilly that you were the driver of the Lamborghini, but that conduct is consistent with such an intention.
The preparation of an accident report in respect of a crash generates a unique number which is provided to the driver for the purpose of, amongst other things, passing on to their insurer when making a claim. The person claiming to be the driver, if he or she was not in fact the driver, whilst armed with such a number, has a period of time to reflect on what he or she proposes to do before actually making an insurance claim using the number provided. You failed to take advantage of that period to reflect on the merits of making such a claim.
Your explanation is that you were protecting your son, but it is also clear that you were seeking to mitigate any financial loss associated with the crash.
You rang Ms Amber Tucker, an employee at Steadfast Taswide Insurance Brokers, the morning after the accident involving the Lamborghini, and said to her words to the effect, “I’ve crashed the Lambo.” At this point you have clearly resolved to make the insurance claim that lies at the heart of this offending. You had chosen to do so despite having an opportunity to reflect on that course overnight.
You then obtained a claim form and made a claim in respect of the damage to the Lamborghini which is the conduct the subject of this offending. The indictment pleads that the offence was complete on 3 June 2019.
I had no account of your motivation for your offending until yesterday, and I have now had to factor those matters into these sentencing remarks. Prior to doing so, I had indicated in my then draft remarks, that I had no reason to doubt the jury’s unanimous verdict in this matter. Your admissions merely confirm the efficacy of that verdict. The point is that whilst the system had taken some time to reach resolution, it had, prior to your counsel’s submissions yesterday, already identified your guilt.
I was encouraged by your counsel at the sentencing hearing to infer that you may have been motivated to be protective of your family rather than, what some might say, is the obvious incentive of benefiting in the sum of $182,950, which is a large sum. Had you not made the admissions through your counsel yesterday, I would not have speculated as to your motivation. Your obdurate refusal to accept your guilt has prolonged the process of investigation and prosecution, and has no doubt impacted upon your family with all of the additional costs and uncertainty associated with those processes. Your late epiphany and preparedness to accept responsibility is not compelling. I am unwilling to accept that your sole motivation was to protect your son. An amount of over $180,000 is a substantial motivation to lie on an insurance claim and I find that you were motivated at some level to seek to avoid the financial loss otherwise incurred if your insurance claim was unsuccessful.
You now say that your motivation in claiming to be the driver was to seek to protect one of your sons who was the actual driver at the relevant time, but that might also be understood as involving you in other or further criminal behaviour. It is not for this Court to speculate about what charges may have been laid had you admitted your guilt earlier. Certainly, counsel for the State, yesterday, rejected the suggestion that the DPP had looked at prosecuting your son, Spiro, as a party to the crime for which you have been convicted.
You used the services of Steadfast Taswide Insurance, an insurance broker, for all of your insurance requirements which included the insurance on the Lamborghini, which was a policy taken out through Allianz Australian Insurance Limited. You dealt with Ms Amber Tucker at Steadfast. Your son, Spiro Fiotakis, was recorded on the certificate of insurance as a “nominated driver” but the insurer claimed that Spiro would not have been covered under the policy at the time of the crash because of a relevant age limitation, as he was under the age of 25 years at that date.
You completed the claim form and provided it to Ms Tucker for the purpose of making a claim in respect of the Lamborghini on the policy with Allianz.
Allianz had some doubts about the claim and AusAssess Pty Ltd was engaged to assess the claim. Mr Barrie Hahnel, of AusAssess Pty Ltd, was asked to investigate the matter and to speak to you. When Mr Hahnel interviewed you, you continued to maintain the falsehood that you were the driver of the Lamborghini at the time of the accident. By this stage, you were clearly trying to conceal what really had happened. On that basis, the criminality involved in your conduct was deliberate, persistent and prolonged. Whatever your motivation, you had plenty of time to reflect upon the course you had chosen, to seek advice, and reconsider your action.
I sought a Home Detention Assessment Report, which I have received, and it is dated 1 September 2025. In the section marked “Attitude and responses toward offending behaviour” it states:
“Mr Fiotakis maintains he was the sole occupant of the vehicle at the time of the accident. He attributes the outcome of proceedings to which he has been found guilty to be in error, stating the investigations conducted by the allocated investigator are incorrect. Mr Fiotakis maintains his innocence, reporting he was wrongfully convicted for the index offence.”
Until yesterday, you have consistently maintained that you did not make false statements to Allianz and that, in fact, you were the driver of the Lamborghini at the relevant time. You have actively maintained that position as recently as 12 August 2025 when you were interviewed by the author of the Home Detention Assessment Report.
The State submitted that you have shown no remorse, and until yesterday I had no choice but to accept that proposition because you had chosen to take no responsibility at all for the offending for which you were convicted. Now that you have admitted your guilt and stated that you are remorseful, albeit at the last possible moment, I will take that into account in the sentencing disposition.
You do not have any relevant prior convictions. You have some minor traffic infringements. The State accepted that your offending was out of character, and that the character references provided on your behalf were a fair characterisation. Those references were a reference from the Reverend Father Dimitrios Katsis, of the St George Greek Orthodox Church in Hobart, and Mr Nick Nikitaras of the “Hill Street Grocer”.
These character references paint you as a family man with a wife of 25 years and three adult sons. Mr Nikitaras notes that he is aware that your financial position is now dire, which, of course, would remove any prospect of a fine being part of the sentencing disposition in this matter. Instead of retiring, you are now working long hours in your son’s business. Further, that you work the hours that you do to assist your son, Nick, who has been injured in a motor vehicle accident. Both Reverend Father Katsis and Mr Nikitaras describe in some detail your role as a leader in the local Greek community.
However, the State submits that despite your being of previous good character, that needs to be set against the actual course of your conduct. The State highlights that this was an attempt to commit a fraud, it was only detected by chance and certainly until yesterday, you had not expressed any genuine contrition or remorse for what you have done.
There is a need, it is said, not only to deter other like-minded people, that is, general deterrence, but also a need for specific deterrence, that is, a penalty to deter you from further offending.
I accept that you are a man of previous good character and your work in your community is to be acknowledged. I also accept that there is a need for general and specific deterrence and to denounce this type of conduct. Insurance companies are victims like any other, offences of these types are not victimless and, as I have noted, the cost of such offending is inevitably passed on to the community. Your obdurate refusal to accept your guilt has also absorbed substantial resources of the insurance company, the Tasmania Police, the Director of Public Prosecutions and this Court, and it continues to do so.
There has been inordinate delay in bringing this matter to trial. In the course of the interlocutory steps leading to the trial, I remarked several times on the unacceptability of the delay in this matter.
The State submitted that for a single crime that was committed in June of 2019 to take six years until being finally resolved by way of a trial in June of 2025 was unacceptable. That much is obvious and clear, over six years to resolve a single count is an intolerable delay. However, the State does not accept any responsibility for the length of time it has taken to resolve this matter, and that requires some analysis.
I was told, upon the sentencing hearing, that proceedings were initially commenced on 1 July 2020 when a complaint on oath was filed in the Magistrates Court alleging one count of attempting to dishonestly acquire a financial advantage – the count on which you were ultimately tried. On 16 November 2020 you pleaded not guilty to that charge and were committed for trial. You first appeared in this court on 1 February 2021. An indictment was filed on 3 November 2021. Trial papers were served 13 days later, on 16 November 2021. After the papers were filed, there was some indication by your lawyers that an application for preliminary proceedings in the Magistrates Court would be filed, and that was done in February of 2022. In March 2022, the application was abandoned, and it was not until May 2022 that you were sent back to this Court.
Between May 2022 and July 2023, time was taken dealing with legal representations and matters raised in respect of, inter alia, alibi notices, one of which I have already commented on today. The DPP looked at setting the matter down for trial in July 2023, but at that time your then lawyer withdrew from acting for you, and you were then unrepresented.
I am told it was the intention of DPP to set this matter down for trial in September of 2023 and to provide you with time to obtain new legal representation. There were various mentions in this Court on 25 July 2023 and on 19 October 2023 seeking to advance this matter. On 19 October 2023, you were informed it was time for you to get a new lawyer and if you could not, you might have to represent yourself.
What then followed was a series of adjournments to allow you to get your finances in order, so that you could obtain legal representation. You were represented by several firms, all of which ultimately withdrew.
The State then sought case management of the matter in July of 2024, and at that time it was the oldest matter in the Court’s criminal list. The matter was set down with a firm date for the November/December sittings in 2024. The trial was then moved to make way for a murder trial on the provision that a trial would be conducted in the second week of the February 2025 sittings. On 29 January 2025 your legal representatives all filed notices of ceasing to act as they had not been paid.
In early 2025, you indicated that you were waiting on the settlement of a commercial property to fund your representation, that settlement did not occur. Ultimately, the matter came before me. At that stage, a lawyer was appearing on the basis that he was not instructed by you but attended to assist the Court on your behalf which, whilst a good example of the preparedness of the legal profession to assist the Court, was unsatisfactory as there was no one appearing before the Court on instructions from you, and no programming orders could be made with any assurance they would be complied with. Further delay was the inevitable result.
Following my involvement, there were a series of further adjournments as the Court sought to give you a final opportunity to retain legal representatives for trial in order to ensure that you received a fair trial. Having initially heard the matter, I ordered that it stay on my list to ensure the matter went to trial without further delay. It was only when it became clear, after a series of adjournments, that if you did not get legal representation that you would have to appear for yourself, that your current legal representative, Mr Crotty, was retained at the last minute and ultimately the trial was completed.
I record that history solely from the perspective that such delays are remarkable and unacceptable because it puts the interests of justice at risk. However, it is not a factor of aggravation and I have not treated it as such in the context of this sentence. However, like any defendant who proceeds to trial, you are not entitled to any discount for a plea or early disposition.
The State also made submissions regarding the Home Detention Assessment Report. It was put that if I was to impose a Home Detention Order that the only recommended option, option 2, would have little impact on your life as it is currently organised. Option 2 is that you must “during the operational period of the order, remain at [address redacted] during the times of 8pm to 6am unless approved by the probation officer.”
The Home Detention Assessment Report also recommended that it was suitable, consistent with option 2, to allow you to continue to engage with your identified employment commitments within your family business. You had expressed the view that maintaining the business operations of that business is imperative for supporting your family and to meet ongoing living expenses. Of course, it is your offending that has put that at risk.
The State submitted that there is one family business that is surviving and operating, and that is the business of your son, Nicholas. Further, that you work in that business. It was said by the State that your work only encompasses five and a half days a week, not the seven days reported, and that the actual days the business is operating do not appear in the report provided to the Court. The proposition put by the State was that the business does not open Sunday and does not open all of Saturday, and thus it is disputed that you work seven days a week.
The State say that option 2 is really just to maintain the status quo at the time of your offending. That is, it would not change the situation of you working and then at the end of the day going home. Effectively, that option 2 does not represent a punishment that reflects the need for general or specific deterrence.
Counsel for the State, in that regard, said “I accept certainly that home detention is a punishment. It is a penalty. But it has to have an effect.” I agree with that submission, there is no deterrence in a home detention option which requires no change in lifestyle or work commitments.
I was addressed in mitigation by your lawyer, Mr Crotty, both on the sentencing hearing and yesterday at the special hearing organised at his request on your behalf. I have also received a number of emails addressed to my Chambers today. I was told that your offending became complete on the claim being made to Allianz. I was encouraged to “ascertain the appropriate circumstances that are consistent with the sentence imposed.” I understand that to be a reference to finding facts consistent with the jury’s verdict, and upon which a sentence is to be imposed.
It was put that you are a man of previous good character, that the offending was isolated. Your offending persisted and has persisted since your claim was made and until the claim was rejected. In that sense it is not isolated. It was a persistent course of conduct. Your admissions through your counsel yesterday reveal the nature of that course of conduct.
It was put that the offending arose in extraordinary circumstances. Those circumstances as found by the jury were that someone other than you, was driving the Lamborghini when it crashed. You have now confirmed that. To that extent I accept the submission that the accident was out of your control. However, your response to those circumstances was entirely within your control and you had time to consider the course you decided to take and maintain. It is put on your behalf that you decided to protect your son because he has a history of mental health issues, including self-harm.
As I have noted your son, Spiro, on 8 March 2023 made a Statement of Evidence in support of an alibi in the form of a statutory declaration. That statement indicated that he had a long history of mental illness and had made a suicide attempt at the end of 2012 or the start of 2013, and that he had had an in-patient stay at that time. That statement was provided to the Court yesterday afternoon by the State. It stated that on the relevant day in question, 29 May 2019, your son, Spiro, had been feeling suicidal and met you at Midway Point after which you drove the Lamborghini home.
As I have already observed, given your admissions yesterday, that statement by your son, on your account, was false. These inconsistencies cast some doubt on your ultimate explanation that you committed the crime to protect your son. The State does not accept that explanation. I am prepared to accept that part of your motivation was to protect your son, but that the large amount of money involved, and the doubt about whether your son was covered by the relevant insurance policy, were also motivating factors.
It was also put that there has been extensive publicity surrounding the trial and the offending, and that represents some form of extra curial punishment. I have already commented on the delays in this matter and I accept that the State has not been responsible for those delays, particularly the lengthy delays in bringing the matter to trial between September 2023 and the ultimate trial in June 2025. Those delays have, no doubt, fed into the publicity around this matter.
It was put, and I accept, that there has been no relevant offending by you since 2019.
I do not find the concept of tariffs for particular offences of great assistance in identifying an appropriate sentencing disposition. There is always a need to consider the application of the relevant sentencing integers to the facts of the case and the circumstances of the offender, and there is always a significant level of particularity and specificity involved in the sentencing process.
I do not accept the submission that it all happened so quickly and in such circumstances that you did not have the opportunity to reflect on making an insurance claim on the damage to the Lamborghini. You had time to reflect and you adopted a deliberate lie.
I used the word “opportunistic” to describe your offending at the sentencing hearing. I did so in the sense that I understand your offending is to be properly understood as a response to what happened, as a response to the accident. Whilst I am not seeing it as premeditated in a broader sense, I am seeing it as sustained because it continued for a period. Further, the conduct is sustained in that there is then an insurance investigation into the claim and your responses to that investigation were consistent with deceptive elements of your insurance claim. As Mr Crotty put it, there was a sustained denial.
An affidavit was handed to me during the sentencing submissions setting out your position. I accepted it as a summary of submissions put on your behalf by Mr Crotty.
I indicated in relation to that, “I am prepared to accept this as your submission on behalf of your client as to his position at the moment … The difficulty with this is that it still doesn’t – it still doesn’t engage the lacuna – the absence that I’ve identified, which is a lack of remorse, or engagement, or insight. Now, I appreciate that your client has the view that he does and again, I’m not seeking to change his mind. That’s a matter for him.”
Well, you have now changed your mind, as I have said, at the last minute and admitted your guilt.
I also indicated at the sentencing hearing that if the $182,950 had actually been taken, you would be looking at a term of imprisonment to be served immediately. I said “the fact that it’s an attempt begs the question whether or not we’re out of that territory. I suspect that we’re not out of that territory …”. I indicated that a term of imprisonment to be served immediately remained a sentencing disposition, albeit a disposition of last resort. That is confirmed by the statutory provisions governing attempts in this State which I will turn to directly.
I was provided with some authorities by your counsel but the amounts of money involved were all significantly less than that involved in this case, and they provided little assistance. As I said earlier, there is always a significant level of particularity and specificity in the sentencing process. In the matters provided, sentencing dispositions included suspended sentences, albeit for significant terms of imprisonment.
Your counsel acknowledged that in this matter there was a cost to the insurer, the cost of the investigation. There was also a cost to the taxpayer in having Tasmania Police pursue the investigation. And, of course, this Court has had to deal with the matter over a considerable and unnecessary lengthy period of time. There is also the prospect of rising insurance premiums to cover the insurer’s costs in cases such as this.
It was submitted that on single counts of obtaining a financial advantage, albeit not attempts but with actual obtaining such an advantage, there was a mean up until 2014 of some 10.5 months of imprisonment. Those dispositions are now over ten years old and of little assistance. Reference was made to the case of Tasmania v Casey Maree Bryant and Jamie Glen Bryant, a decision of Estcourt J on 19 April 2024. I note that in that case, there is a series of similar cases that are set out and discussed by Justice Estcourt.
Here, the amount in question is substantial, $182,950. It is an attempt. It is a singular but persistent course of conduct. Equally, whilst your offending does not involve the breach of trust associated with an employment relationship, the parties to an insurance contract have an obligation to act in good faith and clearly you did not.
It is noted that in Michael Wisby, a decision of Brett J on 26 April 2023, a man of 76 years of age, so a man significantly older than you, with no prior convictions and otherwise of good character, was sentenced to 18 months’ home detention in circumstances where there was no loss as the $127,459 had been repaid, and there was substantial mitigation in the form of a major depressive disorder ,and a long-standing gambling disorder. There being no actual loss, the case has some similarities with an attempt. It is, however, noted that Mr Wisby’s offending was over a 16 month period, so a more prolonged criminal enterprise than in this case, and it involved a substantial breach of trust.
So what is the significance of attempt to the sentencing disposition? Section 342 of the Code deals with attempts. It provides that those accused of a crime can be convicted of an attempt, and those charged with an attempt can, if the evidences establishes it, be convicted of the crime itself, and a conviction for an attempt precludes prosecution for the crime itself.
In Tasmania, s 34 of the Acts Interpretation Act 1931 provides a person convicted of an attempt to commit an offence is liable to punishment as if the attempted offence had been committed:
“Where by any Act an offence is constituted, any attempt to commit such offence shall be an offence and be punishable in the same manner as the offence constituted by such Act.”
By using the phrase “punishable in the same manner”, s 34 is referring to the same type of penalties and method of trial, and is not suggesting that an attempt is to be viewed as the equivalent of the substantive offence for the purposes of punishment. In R v Korver and Tolman [1972] Tas R 149, s 34 was employed to ensure that attempts to commit offences which were deemed to be simple offences and triable summarily, were dealt with in the same way as the substantive offence – in that case an attempt to steal property worth less than $20 dollars. The Justices Act 1959 was subsequently amended to include s 71A.
Section 299 of the Code provides that, “any person who attempts to commit a crime is guilty of a crime.” That provision appears aimed primarily at making an attempt a crime rather than making an attempt directly comparable, or equate, to the substantive offence itself.
Certainly, s 2(1) of the Code makes it clear that “an attempt to commit a crime is an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime.” The jury was given specific directions at trial as to the effect of s 2 in the Memorandum provided to the jury.
The jury in this matter were told, inter alia, that:
“For the purpose of a crime under s 252A, the term ‘deception’ “means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception“;
and further,
The deception must be dishonest in that the accused must have intended to obtain or aid the obtaining of an advantage by the deception.
To find you guilty, the jury had to find that you sought to obtain the $182,950 by a dishonest deception, and that you intended to obtain or aid in the obtaining of that sum by your deception.
Section 252A of the Code makes no specific provision as to penalty. I set out the provisions of Section 389(3) of the Code, which provides for penalties generally:
“(3) Subject to the provisions of the Sentencing Act 1997 or of any other statute, and except where otherwise expressly provided, the punishment for any crime shall be by imprisonment for 21 years, or by fine, or by both such punishments, and shall be such as the judge of the court of trial shall think fit in the circumstances of each particular case.”
The maximum penalty for commission of a crime under s 252A of the Code, and an attempt to commit such an offence, are the same.
There is authority for the proposition that where the maximum penalty for an attempt offence is the same as for the completed offence, the attempt offence will likely attract a lesser sentence than if the offence had been completed: see McKeag v R [2006] WASCA 26 per Murray AJA at [55], Roberts-Smith JA agreeing at [21]. However, in some circumstances an attempt may be regarded as no less serious than a completed offence, for example attempts to possess illicit drugs: R v Nguyen (2010) 205 A Crim R 106, per Johnson J (Macfarlan JA and RA Hulme J concurring) at 127–8, [72].
Of course, factors to be considered when assessing the seriousness of the offence include the chances of success and the nature of the attempt. Where the attempt has failed because of the intervention of a third party or “good fortune”, there may be no reduction in seriousness. In this instance, the attempt was foiled by the insurance company’s investigation, and thus there is not a substantial reduction in seriousness here.
I am left with very limited sentencing options when the Home Detention Assessment Report says you are unsuitable for community service and community supervision, and the home detention option is described by the State as of no deterrent effect. Unless I am to adopt a disposition inconsistent with that report, I need to consider a term of immediate imprisonment or a suspended sentence. Had you not admitted your guilt yesterday, the sentencing disposition would likely have been different.
John Spiro Fiotakis you are currently aged 64, having been born on 17 January 1961. I have had regard to all the matters put to me in mitigation and have factored them into the sentencing matrix. I impose a single sentence. You are hereby sentenced to 18 months’ imprisonment and by the slimmest of margins, and taking your role as a primary bread winner for your family into account, I have decided to fully suspend that term for two years on condition that you commit no offence punishable by imprisonment within that time. I warn you that if you do commit such an offence you will be brought back to this Court for re-sentencing.